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State v. Muhlenkamp

Court of Appeals of Ohio, Third District, Mercer

October 23, 2017

STATE OF OHIO, PLAINTIFF-APPELLANT,
v.
JERROD W. MUHLENKAMP, DEFENDANT-APPELLEE.

         Appeal from Mercer County Common Pleas Court Trial Court No. 16-CRM-086

          Matthew K. Fox and Joshua A. Muhlenkamp for Appellant.

          James A. Tesno for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Appellant, the State of Ohio ("the State"), appeals the judgment of the Mercer County Common Pleas Court that granted Appellee, Jerrod W. Muhlenkamp's ("Muhlenkamp"), motion to suppress. For the reasons that follow, we reverse the judgment of the trial court.

         Facts and Procedural History

         {¶2} The facts relevant to this appeal involve the search of Muhlenkamp's residence. Muhlenkamp had been under probation supervision of the Mercer County Adult Probation Department since 2010. His probation officer was Dane Gross ("Gross"). As a part of his supervision, the trial court set out community control sanctions, which Muhlenkamp signed and agreed to on December 30, 2013. (Ex. 1). Muhlenkamp's community control sanctions required him "to submit to searches, without a warrant, of his person, vehicle, or place of residence by a probation officer". Id. The community control sanctions also included the requirement for Muhlenkamp to submit to random drug screens. Id.

         {¶3} Pursuant to the terms of his probation, Muhlenkamp submitted to an eye scan, a preliminary test for illicit drug usage, at the Mercer County Sheriffs Office on July 5, 2016. Muhlenkamp failed the scan and was directed, by Gross, to submit to a urine sample for drugs. Muhlenkamp refused to take the test which resulted in the determination that he failed the urine test and was in violation of his community control sanctions. Further, on that same date, Gross received information (from another probation officer) that Muhlenkamp was actively using methamphetamines and was potentially manufacturing methamphetamines at his residence. Lastly, and again on that date, Gross received a phone call from Sgt. Link, of the Mercer County Sheriffs Department, expressing concern of Muhlenkamp's recent paranoid behavior and suspected drug usage.

         {¶4} With this information, Gross planned to arrest Muhlenkamp at his residence and search it for drugs and for evidence of a "meth lab". To accomplish his search for a "meth lab", Gross sought the assistance of the Grand Lake Task Force, for safety measures, due to the potential that "dangerous chemicals" may be involved. (Tr. 12-13).

         {¶5} On July 7, 2016, Gross, along with members of the Grand Lake Task Force, arrived at Muhlenkamp's residence. At the direction of Gross, the Task Force officers commenced a search of the outbuildings while he (Gross) knocked on the front door of the residence in order to find Muhlenkamp. When no one answered the door of the residence, Gross joined the Task Force officers in the search of the outbuildings. Ultimately, the search of the outbuildings yielded no evidence of a "meth lab", so the group concluded its search and decided to leave the residence. However, when leaving the premises, Gross observed Muhlenkamp seated on the back patio of the residence. Gross, accompanied by the Task Force officers, approached Muhlenkamp on the patio. When speaking to Gross and the officers, Muhlenkamp became agitated and began yelling at the Task Force Officers. (Tr. 19). Gross suspected that Muhlenkamp was under the influence of "meth" and asked Muhlenkamp to submit to a drug screen. Muhlenkamp agreed but told Gross that he would test "dirty". (Tr. 19). Gross then made the decision to arrest Muhlenkamp for violating his probation. However, since Muhlenkamp was a double leg amputee and was not wearing his prosthetic legs at the time, Gross assisted him into the residence to retrieve his prosthetics prior to formally arresting him. Once inside the residence, Muhlenkamp advised Gross that he had a digital scale in his bedroom closet, which Gross found. (Tr. 20).

         {¶6} Gross then arrested Muhlenkamp. After arresting and securing Muhlenkamp into the custody of another law enforcement officer for transportation to the county jail, Gross and Sgt. Crum, a member of the Grand Lake Task Force, remained in Muhlenkamp's residence. It was Gross's decision to remain in the residence to search Muhlenkamp's bedroom after Muhlenkamp was arrested and removed. Thereafter, and at Gross's direction, Sgt. Crum searched Muhlenkamp's dresser wherein he found "rolling" papers and some plastic baggies stuffed into a Marlboro cigarette pack. (Tr. 42). When he opened the baggies, Sgt. Crum recognized its contents to be crystal methamphetamine. (Tr. 42). At that time, the search concluded so the Task Force could secure a warrant to proceed further.

         {¶7} On July 22, 2016, Muhlenkamp was indicted on one count of Aggravated Possession of Drugs, in violation of ORC 2925.11(A), 2925.11(C)(1)(a), a felony of the fifth degree. (Doc. 5). On July 27, 2016, Muhlenkamp entered a plea of not guilty. (Doc. 16). On March 14, 2017, Muhlenkamp filed a Motion to Suppress the evidence found in his home claiming the search of his residence was "beyond the scope of what would be referred to as a 'probationers search' ". (Doc. 68). On April 12, 2017 the trial court granted Muhlenkamp's Motion to Suppress. (Doc. 79). It is from this decision that the State appeals raising the following assignment of error.

         ASSIGNMENT OF ERROR

         THE TRIAL COURT ERRED WHEN IT SUPPRESSED EVIDENCE FOUND IN THE DEFENDANT'S RESIDENCE DURING A SEARCH CONDUCTED BY THE DEFENDANT'S PROBATIONS [SIC] OFFICER AND LAW ENFORCEMENT OFFICERS WHO WERE ...


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